Krieger-Fall 2002
Civil Procedure Outline
1.
Basic Structure
a. History-England
i. Common Law v. Equity courts
b. Systems
i. Civil v Criminal
1. Damages
2. Procedures
ii. Federal v. State
1. Laws
a. In federal court, may use federal rules but state laws
2. Jurisdiction
a. Person
b. Subject matter
2.
Basic Concepts
a. Features of Civil Procedure in US
i. Adversarial model (judges passive)
ii. Dominated by positive law (codified rules v. common law)
iii. Purpose: secure just, speedy & inexpensive determination of every action
iv. Rules:
1. FRCP
a. Historyi. Joined law ($) and equity (injunction) 1938
1. Still affect (see if equity for jury right)
ii. Supreme Court Judicial Conference, Congress has 90 days to act
b. 3 values underlining design of FRCP
i. Access
ii. Efficiency
iii. Accuracy of adjudication results
2. Other rules
a. Rule 83 (Individual Judge rules for courtroom-local rules not inconsistent with
FRCP)
b. Civil Justice Reform Act of 1990 (congress passed for district court advisory
groups to reduce cost and delay)
c. Individual rules-parties stipulate
d. Ethical Rules-ABA
b. Cognizability-whether law will give relief
i. Must have cause of action (A legal right and a law giving right to sue)
1. Proved by element
a. Proved by fact
c. Due Processi. notice and right to be heard(5th -federal 14th-state)
ii. US v. Hall-about right to be heard (not present at injunction hearing)
1. Didn’t have to be present because his actions disturbed the rights and obligations of P’s and
D’s set forth by courts originally
a. Distinguished from: Alemite & Chase Manhattan
iii. Goldberg v. Kelly and Mathews v. Eldridge-Cases about due process requiring pre-termination oral
hearings)
1. 3 part test used to considering specific dictates of due process
a. Private interest will be affected by official action
b. Risk of erroneous deprivation of such interest and probable value of any safeguards
c. Government’s interest including function and burdens
2. Matthews used same rule, weighed elements differently
d. Burden of Pleading, Production, Proof (beyond preponderance of evidence)
i. P has burden for everything (except aff. def.)
e.
Stare Decisis-Precedent
i. binding court to approach case to rule of law used by previous case
ii. Controlling, Persuasive & in-between (same court)
Legal Remedies
f.
i. History
1. King’s system: common law courts(writ) and equity courts
ii. Types:
1. Specific Performance-cause of action comes from break of covenant (contract)
2. Injunction-preventing action
a. Types:
i. Prohibitory
ii. Mandatory
iii. Continuum from cease and desist—complex structural injunction
b. Kinds:
i. Interlocutory/Preliminary
1. 4 requirements:
a. Suffer irreparable harm
b. Prove P probably going to win
i. Adequate remedy at law
c. Balancing of P and D harms (what would happen if injunction is/isn’t
granted)
d. Impact on society
2. Formula: P x Hp > (1-P) x Hd
a. Harm to plaintiff if injunction denied X probability denial would be error >
D’s harm multiplied by probability would be error
3. Ex. Boomer v. Atlantic Cement-closing $45 million factory for <$200K damages too
intrusive
ii. Temporary
iii. Final injunctive relief/Permanent injunction
1. Ex Walgreen Co. v. Sara Creek-P has burden to show damages inadequate
a. Test of balancing costs and benefits of injunctions v. Damages (trial judge
correct in allowing injunction)
b. Issues: estimating costs of damages (done by parties in injunctions), costs
of continued supervision (none in damages), time (court spends more time
determining damages)
3. Declaratory Relief--Types
a. Declaration of rights and liabilities
i. Must have to be claim filed, and have suit-another remedy sought
b. Declaratory relief is sole relief sought
i. No suit
ii. ex. opera diva singing for opera company
c. very controversial, many states don’t allow, Fed courts limited to hearing “cases in controversies”
4. Damages
a. Actual or compensatory damages ($)
i. General damages (usually mental distress)
ii. Special damages (specific cost that can be determined)
b. Nominal Damages-don’t reflect real harm but are for small amounts
i. often make D liable for court costs
ii. ex Cary v. Piphus-court awarded $1 because P didn’t prove injury from denial of due process,
but due process was violated
c. Punitive or Exemplary Damages (Objective-deterrence) Issues:
i. Liability (doesn’t just reflect harm, but heightened mens rea)
ii. How much determined by:
1. Aggregiousness of conduct
2. D’s wealth
3. What $ is meaningful
iii. Issue: Judicial Review
1.
g.
3.
BMW v. Gore-punitive damages excessive, violated due process (even though had
judicial review)
2. Honda Motor co v. Oberg-OR rule prohibiting judicial review of punitive damages
violates due process because no other safeguards put into effect
d. Fees and Costs-American default rule:
i. Fees-attorneys fees paid by own side
ii. Costs-prevailing party gets costs paid
Securing the judgment
i. Option 1: Obtain lein, restraining order or preliminary injunction on property
1. Lis pendens-notice filed in registry of deeds warning anyone who may want to acquire the
property that it might be used to settle lawsuit
ii. Option 2: Sequestration--Public official takes defendant’s personal property to neutral location, or
order banks to cut of D. access
1. (writ of replevy-writ obtained from court authorizing retaking of personal property
wrongfully taken or detained)
a. Fuentes v. Shevin-SCOTUS declared summary seizure of goods/property under
writ of replevin in FL and PN uncon. because no notice/hearing (see due process)
iii. Advantage to plaintiff
1. Assured D resources available if win
2. Tying up resources puts pressure on D to settle
iv. History
1. Minimal to no restrictions to securing the judgment prior to 1960s
a. Challenged as violations of 14th am. “due process”
b. Sniadach v. Family Finance Corp.-SCOTUS struck down Wisconsin’s
prejudgment wage garnishment statute
c. Doesn’t apply to movable property Toledo
Filings
a. Moving
i. Notice of motion & motion
ii. memo of points and authorities (or opposing memo of points..)
1. affidavits
2. interrogatories
3. R/A
iii. proposed order
iv. Statement
b. Nonmoving
i. Notice of motion & motion
ii. memo of points and authorities
1. facts
2. facts not in dispute
iii. proposed order
iv. Statement
c. Moving
i. reply MPA (no new authorities)
Step 1: Pleadings
1. Complaint
Requirements:
1. Rule 8(a)-“short plain statement of grounds…”
a. Conley v. Gibson-see 12(b)(6)
b. Leatherman-affirmed notice pleading-no heightened pleading,
i. unless immunity raised as aff def then heightened pleading in P’s reply (Shultea v. Wood)reasoning: FRCP “shall not abridge, enlarge or modify any substantive right 28USC $2072(b)
ii. OR if 9(b) or (g)=Heightened Pleading-Fraud, Mistake, Special Damages
1. Bower v. Weisman-balance 9(b) and 8(a)- (9b doesn’t render 8a meaningless)
2. Fraud-9(b)a. Elster v. Alexander-gives ex. of well pleaded fraud
b. Todd v. Oppenheiminer-9b purpose sufficient to permit response
2. Rule 11-objectively reasonable standard “after an inquiry reasonable under the circumstances
3. Rule 10(a)-Identify Parties
a. Doe v. United services Life Ins. Co- (homosexual ins. Case)
i. P can use pseudonym if needed to “protect privacy in very private matter” (ex’s given) but not
for professional or economic life
Components:
 Introductory Statementa. Identify P and D (see Rule 10(a) above
b. Provide sympathetic, thumbnail sketch of facts giving rise to P’s claim
c. Identify claims for relief (in general)
d. Jury trial forfeited in 10 days of initial filing (or amendment), so most of the time included in complaint
 Juristdiction and venue-different in state v. federal court
a. Rule 8a-must tell federal court right away-provide statute
b. If state court, provide basis for superior court jurisdiction (ie amount in controversy, injunctive relief
sought)-don’t need statute
c. Identify basis for venue in particular country or district where the case was filed (in state court, tell
county)-Civ 2
d. Demonstrate fulfillment of any applicable prerequisites to suit (ex Peacock,
 Parties
a. Identify plaintiffs and provide info (where relevant) re:citizenship, residence (for diversity), venue, choice
of law-which law applies, often relates to jurisdiction
b. Identify D’s and provide info (where relevant) re:
c. Provide info re: plaintiff’s stuatutory and/or constitutioan standing (where relevant)-P is within
protective wings of statute
d. Provide facts showing D can be sued under statute
e. Class Action Allegations (where applicable) FRCP Rule 23-may not study
 2 different ways to write at this point:-tradition dictates choice
a. 1. General Allegations
b. 2. Launch in to claims for relief
 General Allegations-(nucleus of operative fact)
a. narrate facts-more common in code pleading
i. In strict code pleading jurisdictions, or where heightened pleading standard, must establish each
essential element of each claim for relief (for disfavored actions)
b. Notice pleading-Sets out nucleus of operative facts in (has less detail)
 Claims for Relief/Causes of action/counts (more on web notes)
a. Identifies legal basis for relief
b. Code
c. States specific forms of injury (ie mental distress) and relief (is punitive damages allegations
d. Facts constituting claim
 Prayer/Request for Relief
a. Declaratory relief
b. Injunctive relief
c.
d.
e.
f.
i. Ex. Kelly v. Wyman
ii. Preliminary-No adequate remedy at law, likely to succeed on merits, irreparable harm, balance
of hardships v. public interest
Compensatory damages
Punitive damages (where appropriate)
Fees and/or costs (as appropriate)
“Such other and further relief” catch-all
Chance to end it: 12(b)(6)
2. Answer
Options after being served with complaint
1. Challenge complaint
o Using Rule 12 Favoritest Disfavored Favored
 12 b motions:
 12(b)(1) lack of subject matter jurisdiction
 court can initiate on own
 12(b)(2) Lack of personal jurisdiction
 12(b)(3)Lack of venue
 12 (b)(4)Insufficiency of process (papers)
 12(b)(5) Insufficiency of service of process (how get/not get papers)
 12(b)(6): Failure to state a claim upon which relief can be granted
Rule 12(b)(6) LOOK AT COMPLAINT ONLY
 See also Rule 8-notice/code pleading, specificity
o Leatherman-SCOTUS no heightened pleading unless rule 9 applies
 See also Rule 9-heightened
 View facts/draw inferences in favor of P when evaluating
 Conley v. Gibson Complaint shouldn’t be dismissed for failure to state a claim unless it appears beyond doubt P
can prove no set of facts in support of claim which could entitle him to relief
 Aff. def. v. EE Gomez v. Toledo
o D has burden to plead aff. def.
o Look to state substantive law to see how it treats (def. v. Aff. Def.)
o English writ system
 When it works:
o No such cause of action exists
 Ex. person in CA filed in federal court claiming they were fired from job without just causesuing for wrongful termination. D can bring successful 12b6 and get rid of claim because there
is no right to sue for that.
o Gap in complaint reveals incurable defect
 Ex-no private right of action, no satisfaction of prerequisites, statute of limitations, D can’t be
sued, P can’t sue
o Facts pleaded affirmatively establish failure of elements
 Ex. Bower v. Weisman-false imprisonment claim=worked, claim dismissed
o Heightened pleading standard (will just get leave to replead)
 Ex. Bower v. Weisman-failure to state fraud with particularity
 Why courts don’t like to grant:
o Rennie & Laughlin Inc. –salvaged minutes by 12(b)(6) become wasted hours when appellate court has to
reverse
 Strategy considerations
o educate opponent
o timing, publicity, cost, probability of success, delay, repeat players watching law develop




12(b)(7)failure to join an indispensible party under Rule 19
Other 12 motions
12 c: Motion for judgment on pleadings (ordinarily done after answer)
 Same requirement as 12(b)(6) just done after answer
 includes all pleadings and items taken on judicial notice
12 e: MoMoDefSta-Motion for a More definite statement



2.
File answer-Rule 8(b-d) (also 7 and 12 apply)
o Defenses: based on substantive law and claim for relief
 Denials Rule 8(b):
 General denial (if not verified; hard to do under Rule 11) vs Specific denial (most common)
 Controlled Environment Systems v. Sun Process Co, Inc-“knowledge isn’t same as the belief
that is required to answer”
o Option in some jurisdictions: denial upon “information and belief”
 Note: 9(c) Denial of performance or occurrence made with specificity
 Rule 8(d) Deny or admit every allegation in claim (function-eliminate issues not in dispute)-may
lose if you don’t deny now
 Greenbaum v. US D has to exert reasonable effort to obtain knowledge of fact in denial
o Fall at post office-gov’t didn’t bother to try and research-taken as admission
o Zielinski-another case of failure to deny-forklift case=caused actual prejudice so
fail to deny=admit
 Rule 8(e)-Henry v. Daytop-FRCP explicitly authorize pleading in the alternative
o Discrimination firing case
 Strategy:
 Include Rule 12 motions you lost on
 Include any affirmative defenses (see Rule 8(c)-or may lose right
 May want to deny things so no evidence will get admitted on it
o Ex. employer liability in sexual harass. claim=evidence of past behavior
 ex. Jones v. Clinton-can’t prove tangible job detriment
Transsubstantive Defenses-defense that come from other rules, but have to be able to say you know P can’t
prove
 ex 12(b)(6)-so harder to win
o Affirmative defenses-from substantive law (look to equity if unsure); like another essential element (yes but;
blocker lego)
 Listed in Rule 8(c): “any other matter”=immunity, truth
 Gomez v. Toledo-D has burden to plead affirmative defenses in 8(c)
 (Note:Rehnquist disnt-thinks who must prove immunity open)
 Otherwise D has burden of plead, production and proof
o Assert counter claims
 Rule 8(a) applies “short plain statement”
o Strategy:
 keep track of every element for each claim (ultimate, pent-ultimate and evidentiary facts to know
 ex Med mal--ultimate=duty; pent-ultim=pt/MD rel; evid (appt)
 which issues are closed, and to ensure you are meeting your burdens (aff. Defenses)
Do nothing and allow default judgment Rule 55
o Ex. if about to go bankrupt
o relatively rare
Seek extension Rule 6(b)
o To do any of above
o To settle=MOST COMMON
o
3.
4.
Bower v. Weisman-when >1 D, complaint must allege which D did what alleged facts
Boothe v. TRW Credit Data-don’t grant 12(e) unless complaint is “so excessively vaugue
and ambiguous as to be unintelligible and as to prejudice D’s seriously in attempting to
answer
12 f: Motion to strike
 Strategy: could strike claim that allows for jury trial, then if they forget
 get rid of “you’re ugly and your mama dresses you funny” statements
3. Amendment
1.
2.
3.
4.
5.
Rule 15
a. Doesn’t articulate most amendments about statute of limitations
3 policies of statute of limitations
a. Value of repose-society better off if people get on with life, no worries of suit
b. Prevent preparation prejudice to D-longer time from injury-harder to get evidence
c. Conserving judicial resources-old claim takes long time (for reasons above)
5 things to think about statute of limitations-how work
a. When does statute commence running
i. General rule: when cause of action accrues-cause of action perfected
1. Usually when last essential element occurs
2. Other examples that don’t file general rule
a. Denial of tenure
b. New employees at Lawrence Berkeley labs at U of Cal-blood test told having
CBC, actually having HIV, sickle cell, syphilis (especially for latino and blacks),
pregnancy test-person finds out in 1994 and suit filed-practice stopped in 1980’s
c. Reasonable discovery rule-In hidden injury, action accrues when reasonable
person would have found out about injury
i. If hurt: GO TO HOSPITAL
b. How long is limitation period
i. Every statute has statute of limitations (case law, civil procedure rules), can be difficult to determine
WHICH statute of lim. to follow-find in WIC ??-are books to tell you
ii. In federal when no stat of lim-use most close state stat of lim
c. When is action commenced
i. General rule-stat. of lim. starts upon commencement of action
ii. What differs is when action considered commenced-filed with court clerk, service of notice to D,
complaint filed plus service tail (in CA, complaint must be filed and served within 3 yrs; federal
court service tail is 120 days, and toll doesn’t stop until served)
d. Under what circumstances, if any, will timing be tolled (between last act and complaint)-means suspended or
stopped because action has commenced
i. History-statute of limitations came from equity (fairness to parties and public interest)-have equitable
doctrine and equitable defenses
ii. Suspension for equitable reasons:
1. During period of minority (under 18) or incapacity (ex. coma)
2. Proof of fraudulent concealment of D (conceal source, injury, or D’s identity)
a. Often works in conjunction with discovery rule
3. Estoppel by conduct (similar to fraudulent concealment, actual and not-real D conspiracy)
4. D outside service of court
5. Several remedies rule-if P chooses one of many options, others tolled
a. Ex. worker’s comp claim, can sue in Tort (1 yr statute of limitations) if not covered
by worker’s comp claim
e. Are there mechanisms for extending period in order to enable parties to join additional claims or join
additional defendants
Rule 15(a)a. Parties can amend once before responsive pleading
i. ex. 12(b)(6) filed
b. Otherwise: Party can only amend if D stipulates (rare) OR motion to amend after response.
i. P File: Notice of Motion and Motion to Amend (+proposed amended complaint) and proposed order
ii. D files Memo of points and authorities (MPA) in opposition-2 weeks before, Proposed order
iii. Reply-with 1 week before
iv. Judge rules--Leave can be given when justice so requires-(basic rule)
Rule 15(c)-Relation back of amendments
1. Permitted by law when statute of limitations applicable OR
i. Marshall v. Multenin-Use any other relation back law if it is more forgiving
2. Same party: Claim arose out of conduct, transaction, or occurrence set forth in original pleading
ii. look at essential elements
iii. see McCaffrey tests
3. Changes the party and t/o test (#2) satisfied AND within 120 days of summons and complaint party:
iv. receives notice (so no prejudice) AND
v. knew or should have known but for identity mistake action would have been brought
1. Wood v. Worachek-allowed for relation back to change theory, correct misnomer of P,
change capacity for P to sue, substitute or add P as real party interest, add P’s in class action
or to correct misnomer of D
a. can’t usually add D’s when stat. of lim up
2. Worthington v. Wilson-mistake is NOT lack of knowledge of proper party
a. Unnamed police officer abuse case
3. Note: CA allows Doe D
a. File within stat of lim, must be ignorant of D’s identity, include D in one claim for
relief, have 3 yr service tail
b. D can use Latches defense-similar to stat of lim D, show undue prejudice
vi. 15(c)(3) changed Schiavone v. Fortune requirement of w/in stat of lim
1. but preparation prejudice is always issue in amending
a. ex. Christopher v. Duffy-court determined policy rules (prejudice) prevented
amending complaint to add new D’s (in Mass.lead paint case)
6.
Strategy:
a. may want to reconsider claims in light of discovery
i. ex. Jones v. Clinton-got rid of defamation claim because it made her reputation at issue
4. Reply
Only in limited circumstances-aff. defenses pleaded in answer that permit a reply
5. Pleadings relating to cross-claims, counter claims and third party claims
Only in limited circumstances
Title
Rule Requirements/
(s)
Standards
Sound Bites
Crossrefe
rences
Key
Issues
Simple
(Permissive)
Joinder of
Claims by P
Rule
18
-from other cases rules of
general application
Jurisd;
venue;
claim
preclusion
by rule
(=res
judicata)
Permissive
Joinder of
Parties
Rule
20
19-who
must be
joined
20-who May
be joined
13Cntrclaim
21-misjoin.
Sep. trial
18-once
party joins,
permissive
claims apply
13-CC and
XC once
joined
21-can’t
dismiss for
mis-joinder
Note: in all of theseno guarantee the
claims will be tried
together
(who may be
joined)-by P
Counter
claim
1Compulsory
(shall state)
claim at time of
service by
Test:
1. Same
Transaction/occurren
ce AND
2. any question of
law or fact common
to all person applies
(not hard)
20(b
may order separate
trial or other orders
Rule
13(a
a-Comp-same t/o of
claim
13(b
b-Perm-may state if
not from same t/o
13(c
2 Permissive
(may state)
13(e
13(f
Cross
claims
No limitation (ie
transaction, etc.)
Rule
13 (g)
c-cntr claim can’t
exceed opposing
claim
e-cntr claim matured
after pleading served
f-cntr claim when
forgot & justice
requires
Test-t/o of P’s claim,
or cntrC or property
subject
(may state)
3rd party
practice
when D may
bring in 3rd
party
14(a
D
14(b
P
(Impleading)
Misjoinder
Rule
21
a) is or may be
liable=Derivative
Claim (see below)(Can’t already be
party)
-derivative always
meets same t/o
Misjoinder NOT
grounds for dismissal
-broadest scope possible
consistent with fairness to
parties United Mine workrs
-permit “all reasonably rel
claims…absolute ID unnec
Mosley
-can be long time period Kedra
(narrower than 18)
Goals:
-protect affected parties (include
court): prejudice, expense,
conven, time
-crt retained freedom to issue
orders Kedra (family/policecase)
-McCaffrey tests t/o
-exception to com cntrC-subject
of pending action
-waivers to CntrC (can restrict
in state court) but not restrict
privilege of litigating or restrict
federal jurisdiction (waivers
apply to permissive, but not
compulsive-Banque Indosuez; &
Loader
-rule says no summary
judgment if have valid set off in
Banque Indosuez
-Scope of XC= <permissive;
>compulsory
-Never compulsory Moore
-Response back from XC=CC
Moore (3rd party P)
-rule against case-hijacking
Purpose-judicial efficiency
McLaughlin
Therefore, court has
considerable discretion
Consolidated Rail Corp v. Metz
Court must balance efficiency v.
potential prejudice to P (and 3rd
party D)Oliner v. McBrides
May order separate trial
Juris;
venue;
Prejudice
19-? Need to
join another
party
20 if parties
joined
Juris;
venue;
Collateral
estoppel
IssuePreclude by
Rule
Rules 19 &
20 (if
joining
another
party)
Juris;
Venue;
Prejudice to
P
20, 21separate
trials
All party
rights apply:
12
13
Prejudice
Transaction/Occurrence Test:
 McCaffrey v. Rex Motor Transp. Inc-lists all 4 tests courts can use
1. Issues of fact and law are largely the same
o Project forward to determine what legal/factual issues will be for overlap
 look at elements, in group of D’s look for “systematic pattern”, conspiracy, etc “under color of
law” as in Kedra
 Note: what is required to establish “under color of law”
o Monell-if sue official acting under state capacity must prove it was done under
customer usage policy
2. Res judicata would bar subsequent suit
3. Both claims use same evidence
4. Logical relationship between claim and counterclaim *most popular*
o use whole corpus of facts to determine if there is series of transactions, match up with other corpus of
facts in other claims to see where overlap of facts is (not always easy-take best guess)
o Plant v. Blazer Financial Services-P sued lender on truth in lending cause of action. Lender
counterclaimed with state law cause of action on debt
 court ruled single aggregate of operative facts-determined counterclaim was compulsory
 maybe all related to one issue (ex. all were about one construction project)
 Exceptions:
o When action brought counterclaim is subject of another suit
o (other exceptions are CivPro II:
 Strategy:
o In counterclaim (which might be compulsory) when in doubt=BRING claim
 Same test as in Rule 15 (used throughout rules)
Preclusion by Rule-remember court and society also stakeholders
 Strategy:
o if 12(b)(6)-make sure to assert counterclaim first (so isn’t lost in dismissal of action)
o BUT if cause of action isn’t perfected yet, have defense of reasonable recovery
 Res Judicata/claim preclusion-entire claim cannot be relitigated (see below)
 Collateral Estoppel/Issue Preclusion-piece/element already decided on (below)
Rule 14
Derivative liability-D can only bring in 3rd party if may be (derivatively) liable Rule 14
1. Indemnification-compensating for loss or damage sustained
2. Subrogation-substitute one party for another
-Think insurance
-US v. Olavarrieta-tried to implead Board of Regents for default on student loan for law school=improper
3rd party impleading-didn’t have derivative claim (US that paid student loans to bank could have impleaded him)
3. Contribution-one of several persons liable recover from others
-must be allowed by state law
-ex. Summers v. Tice if Summers would have sued Tice and not Simonson
4. Warranty-covenant by which deed (in property), contract
Party rights in Rule 14-3rd party
 D (3rd party P) can serve without notice in first 10 days of answer
o Otherwise, need motion upon notice to all parties
 Party served (3rd party D) can: (has all rights of any other party)
o Make defenses (as in Rule 12)
o (Compulsory) Shall make Counterclaims against third party P (Rule 13)
o Cross claims against other third party Ds (Rule 13)
o Assert any defenses to P’s claim
 Including defenses of D (3rd party P)
o Permissive-May Assert counterclaim to P IF same t/o of P’s claim to 3 rd party P (D)-13
o Permissive-May Assert counterclaim to D if same t/o of P’s claim to 3 rd party P (D)-13
Prejudice
 Gross v. Hanover-P wanted insurance company D to pay policy, D impleaded Anthony and Joseph (cokehead)
Rizzo
o answer was >10 days and would increase discovery->still wasn’t sufficient prejudice to P to deny motion
Rule 11: After 1993 amendment-safe harbor-hard to make Rule 11 worth the effort Strategy:
Reasons we might do it:
 P will drop suit (would meet goal of quick resolution)
 Improve negotiating position
 Could get $ for reviewing complaint + Rule 11 motion (not much $)=if win + convincing judge to award sanction
to reimburse costs
o Keep in mind 1993 amendment done to reduce # of fee-shifting
o (make rule 60(a) motion-offer judgment be offered ex. for $10 can shift all costs—problem=judgment
entered against client
o (request for admissions, and party denies, can get partial fee-shifting)
Merits and ways to increase chances of success:
 Serve copy of motion 11(c)(1) and send factual information with
o Factual info to send:
If this happened, opposing lawyer would say:
 I can think of all these scenarios where what you say is true, but still could be valid claim, you should let me
interview all the D’s and if I find that’s true I’ll drop the charges
 Puts to full and fair information symmetry
6. Note: Chance to end it=Motion on the pleadings 12(c)
Step 2: Discovery
Discovery analysis:
 Identify what asked for/what have
 Ask if within scope of discovery rule
o (Remember 26(a)(1) initial disclosures, 26(a)(2) experts (what will say, unless ER expert)
o Scope 26(b)
 Claim or defense-may discover UNLESS
 subject matter-discover for good cause UNLESS
 Cause party (or 3rd party) undue embarassment or harassment 26(c)
o ex. Priest v. Rotary-must weigh benefits v. embarassment, not admissible/relevant and would cause
embarassment
o when 3rd party interests involved, must weigh carefully and narrow discovery as much as possible Bowler
o Reasons:
 to empower courts to prevent unjust effects of dissuading lawsuits based on valid claims (esp
about sensitive subjects) Priest
 courts not instruments of oppression Kains v. Anhauser Busch
 Protect 3rd party interests Bowler
 Is it discoverable because of privilege
o Must be a protected right
o Sources of privilege (protected rights)
 Common law privilege (judge-made law)
 Attorney/client communications
 Work product rule-only privilege we are covering
 Valued relationship protection
o Physician/pt, fiduciary rel.
 Constitutionally based privilege
 5th amendment
 Cal. Const. Privacy
 Statute/Rule
 State evidence code statute
o




Work Product Immunity Privilege Hickman v. Taylor (before) 26(b)(3)
 What is the material being sought?
 List what asked v. what have
 Was material prepared “in anticipation of trial”
 Hard to answer b/c preparation can be for more than one purpose, or purpose changes
 Ask:
 Was there an independent duty to prepare material ?
o ex. mandatory reporting requirement
 Are these materials regularly maintained in ordinary business activities
o ex. insurance claims
 Carver v. Allstate Ins. Co.-have to distinguish between routine
business practice v. substantial probability of litigation
 Think about timing of preparation and litigation
o Easy: if no or every element of cause of action has occurred
o Harder: Breach duty of care, but no actual injury yet
 Involvement of lawyer in process
o not determinative
 Who used document and what purpose did they use it for
o ex. study done to determine compensation for hiring, would be able to be used
in pay equity suit
 Result: End up taking discovery on the discovery to answer these questions
o Point: tension between being general and specific
o if want to get info, need to find out all of these factors: who made it, who saw
it, people that saw it what was there function, is it usual practice to do it
o get through interrogatories
o 30(b)6 deposition-least used, most useful
 tell party to send party with most knowledge to answer questions for
you to depose
 Was material prepared by covered person (attorney or agent)
 If it was prepared in anticipation of trial, does it contain the mental impressions of counsel
(factual v. opinion work product)
 Why important: Facts can be separated out and discovered
 Mental impressions are subject to absolute immunity (unless legal mal case, where the
conclusions are the claim)
 UNLESS Has been a waiver?
 Both mental impressions and factual material can be waived
 Disclosure to 3rd party or party can be waiver
 Signed statement isn’t a waiver
 26(b)(4): if expert witness=NO WORK PRODUCT IMMUNITY
 26(b)3: if not designated witness-immunity applies
Is there a great need for info and inability without undue hardship to obtain by other means (what access is now
available)
o Witness dies, leaves jurisdiction, unwilling to cooperate
o other ways to obtain, public hearings, etc
What argument is being made by party seeking discovery (what is purpose/showing of need)/theory of relevancy?
o is evidence admissible (won’t have to know for test, if hearsay=inadmis.)
 rule 404-evidence of character not admissible for purpose of proving action in conformity on
particular occasion
 404(b) habit exceptions
 only if motive/intent is at issue-habit has to explain intent
 but going to church every Sat. not admissible
 403-even if admis. judge can waive if tendency to emb. outweighs
Balance need v. reasons for not disclosing (including alternatives)
Protective orders 26(c)
o Options: don’t allow discovery, seal, “in camera”, schedule discovery
Strategy:
 discovery plan THINK BACKWARDS
o
think of every claim, all elements (and aff. def) what proof needed for each element (and how fit with
legal theory)
o Reasons
 Rule 26
 to decide if case is worth taking:
o Consider:
o Base rate data
o EVp = V(p) x Pr(p) – C(p)
 Expected value from plaintiff’s perspective=potential recover X probability of P’s prevailing –
(nonrecompensable) costs of suit
o V(p)--Potential recovery depends on R(p) and CC/A (P’s recovery and cost shifting and attorney)
 fee shifting matters
 part of skill is to predict this and probability of prevailing on the merits
 Start with each cause of action you might bring
 Disaggregate into essential elements of claim
o (Think of affirmative defenses)
o For each essential element (and defense)-ask what facts now have that make essential element more or
less probable
o Then ask what facts do I need to get (to make element more or less prob)
o Then ask where would I get those facts
o What device or discovery can I use to get those facts (and why)
 Interrogatories; Admissions; Medical exam; Depositions
o What obstacles might I encounter
 Scope of discovery (should be able to show admissible if did analysis right); Privilege;
Protective order; Consider undue burd.
Steps of discovery:
 Rule 26(a)(1) Initial Disclosure Process
 Parties meet at beginning of trial to schedule discovery
o After complaint and answer, parties meet, confer, exchange info about legal theories, factual dispute,
exchange materials:
 list of persons who they believe after investigation have personal knowledge relevant to case that
will prove part of case (name address, phone, and nature of facts)
 Documents or other tangible things
o Note: you only have to provide documents that support your case 26a1
 Reasons:
 Not adversarial
 Hard to figure out what might be helpful to other party
o Parties supposed to come up with proposed discovery plan and submit to court
o Court meets, schedule set, court has opportunity to structure timing, can determine order of discovery
(some issues before others ex. have discovery on one issue, court hear summary judgment, then do other
discovery)
 when discovery problems:
o attorney must list reason for not disclosing
 ex privilege; Overly broad, burdensome, oppressive; Estoppel; Violative of public policy;
Privacy of 3rd parties
o Rule 37(a)(2): parties must and try to resolve
o if not, involve magistrate (then can go to judge)
o if party won’t comply with discovery order: Rule 37(a)(4) sanctions
Discovery Devices:
REMEMBER 26(e): continuing duty to supplement discovery requests
1. Interrogatories Rule 33-written questions to opponent, answers written by lawyers
 Duty to make reasonable inquiry
 Limits
o trend to limit interrogatories in courts that can be asked (25 including subparts) is very small #
 basically means court has to monitor all interrogatories
 Strengths
o info may be used to point out inconsistencies in deposition
o
o
When lots of people have pieces of information, hard to depose all
Interrogatory makes other side do all that work
 BUT rule 33(d) if lots of records to go through to make compilation
2. Depositions Rule 30
(see also Rules 27, 28, 31, 32)
 Advantages
o chance to question under oath, degree of spontaneity, opportunity to follow up in new directions revealed;
use at trial; can depose non parties
 Disadvantages
o *cost; limit #; educate opponent
 5 things trying to accomplish
o trying to learn what parties and witnesses will say at trial
 predict success
 eliminate hearing damaging information first time at trial
o pin down damaging information to one version of events
 no new bad news
 use failure to say at first time, to impeach when used at trial
o obtain info to use for impeachment
 financial assistance, personal information to party=find out then
 at trial attempt impeach only if know answer and can prove
o Get into record to use in summary judgment motions
 D doing discovery to try to prosecute summary
 P doing discovery to defend against inevitable summary
o Doing deposition to enable you to do more discovery
 Limits:
o ANY person, including party
o 10 total
o each limited by 7 hours, one day per witness (can agree to more)
 Options
o Can have video/phone
o Must travel to where person is if >100 miles (unless they want to travel)
o subpoena records docus penum--bring documents with them
o 30(b)6 deposition-least used, very useful
 tell party to send parties with most knowledge to answer questions for you to depose
3.
Document Requests (Rule 34)
 Have to find documents that give weaknesses of opponent’s case
 Opponent has no obligation to turn over documents that aren’t in initial disclosure or ones that you haven’t asked
for
o Often results in overbreadth problem (hard to ask if you don’t know it exists v. motion that request is too
broad)
 Danger: party may not look very hard if request too broad
 Some judges develop policies that you have to tell exactly who, where and why you
looked where you did
 Procedures for objecting
o Work product
o Attorney/client privilege
4.
Requests for Admissions Rule 36
 Uses:
o Primarily-to get stuff out of the way
o Also: use to structure discovery in way contention interrogatories used to be used (admit X, if not, say
what you will use to prove)
 Doesn’t work: admit everything I said
o Hard to word something that will get opponent to make case for you (their lawyers will get out of it)
o May distract you from proving your own case through witnesses and wits
 Can be used to set up fee-shifting later on-If later proved, costs to prove can be shifted
Step 3: Trial
Sequence of events (probably not important to know)
 Judge rules on motions for summary judgment
 Pretrial conference: Rulings on admissibility of evidence; submission of proposed jury instructions
o Idea to make trial run more smoothly, and do things jury can’t hear
 Jury selection
o Federal court=judge conducts voir dire
o peremptory challenges-limited
o challenges for cause-not limited
 Opening statements
o Provide road map to jury about what case is about, what you will prove, what legal significant is,
inoculate jury to problems of case
 Presentations of cases-in-chief, rebuttals
o Direct, cross, redirect, recross P (may have motion for judgment as matter of law-directed verdict) then D
o New evidence (or witness) have to have extraordinary situation, can’t get admitted
 Dispositive Motions
o Failure of proof such that no reasonable jury could decide in other parties-not actual factual dispute for
jury to resolve
o Motion for summary judgment usually can’t be appealed (unless final judgment entered=must have final
judgment to appeal)
 Closing Arguments
 Instruction
 Deliberation
o Jury can ask judge to explain something, can’t ask for additional evidence
 Verdict
 Jury Discharged
 Post-Verdict Motions
o Motion for judgment as matter of law (judgment n.o.v.)
 Appeal
 Entry of Judgment (verdict reduced to judgment and filed with clerk)
Jury Trial
Right to Jury Trial


Sources (constitution or statute)
o 7th Amendment “In suits at common law, value >$20, right to jury preserved”
 for civil cases in federal courts
 for suits at common law
 note “preserves” rather than “creates” the jury trial right
o Other sources of right to trial by jury
 State court actions at law-state constitutions
 No federal guarantee
 Federal criminal prosecutions-6th Am
 State criminal prosecutions-6th Am
 Incorportated into 14th am due process
 No jury in admiralty claims (because none in 1791)
Determining if right to jury exists under 7th amendment Chauffeurs..v. Terry
o 1. Determine if action is common law or equity in 1791
 Central Question: Was instant claim, or if no such claim existed, some close analog, treated as a
legal rather than equitable claim in English common law courts in 1791
 Depends on nature of issue to be tried father than character of overall action Ross v. Bernhard (in
Chauffeurs)
 Prototypic “Legal” Claims
 Breach of contract; Action to recover on a debt; Trespass to the person; Trespass to real
property or chattel; Defamation; Other Torts
 Prototypic Equity Claims



Action for Specific Performance(Ex. opera diva); Family Law or Dependency Proceedings
(Divorce, child custody, guardianship); Probate Proceedings (Estates, trusts); Actions
requesting injunctive or other equitable forms of relief, as opposed to actions for
compensatory and/or punitive damages
o 2. Determine if remedy is legal or equitable (most imp. per Chauffeurs)
 Remember: Equity courts developed out of situations in which there was no adequate remedy at law
(payment of money from one to another didn’t solve problem)
 After merger available remedies associated with a claim for relief largely define whether the claim
sounds in law or in equity
 Ex. Title 7 didn’t provide for jury trial until it was amended in 91 to allow for compensatory
damages (and jury)
 Legal Remedies
 Compensatory damages, including special damages (heightened pleading, ex. back pay)
general damages (pain and suffering, future economic loss-speculation)
o Look at cases and see if there is right to damage for mental distress=then it is
compensatory
 Punitive Damages
 Equitable Remedies
 Injunctions
 Restitution (can be equitable or considered special damages)
 Back pay, front pay and other “make-whole” monetary relief (catch up remedy)-custom and
usage is what makes difference between this and special damages
o No mental distress damages
Asserting (or blowing) the Right to Jury Trial in Civil Cases
o Rule 38 specifies requirements r/t asserting right to jury trial
o 38(b): Party seeking jury trial must serve demand in writing w/in 10 days after service of last pleading
directed to the issue as to which right exists
 ordinarily P puts in complaint
 if P didn’t and D wants, puts in answer
 If P forgot within 10 days of answer can file separate demand
 Or if counterclaim or cross claim (if directed to issue where right to jury trial) have 10 days
o 38(d): Failure to timely and properly demand constitutes waiver
 try to force P to amend complaint (gives you another chance)
Roles of Judge and Jury
o Judge
 Decides all motions
 Rules on Admissibility of Evidence
 Decides when there is a “genuine factual dispute”
 Why so many cases decided on summary judgment
 Instructs jury re: applicable law
 In CA: often use BAJI, but parties often propose different instructions
 Resolves disputed issues of law
 Can take case from jury in limited circumstances
o Jury (can they do better than judge?)
 Makes credibility determinations
 Draws inferences from evidence
 Weighs evidence
 Resolves disputed issues of fact
 Renders a verdict by applying judge’s instructions to the evidence
o Note: juries and judges agree 80% of time on outcome
o Experts
 are judges less likely to be fooled by experts?
 Admissibility-Federal Rules of Evidence
 Daubert test
 judge gatekeeper here
 Weight
 jury’s role
7. Chance to end it=Summary judgment
(95% civil cases end before trial)
Other ways to dismiss: (probably not important)
 Motions to dismiss under Rule 12; 12(b)(6) or 12(c)
 Default judgment-Rule 55: relatively rare
 41(b) Involuntarily dismissed for aggregious failure to comply with orders of court Basic rule: When judge gets
sufficiently pissed off
o motion of D or sua sponte (very rare) for failure by P to prosecute in timely manner (does no/stops
discovery or failure to comply)
 must be party (not attorney’s fault)
o dismissed with prejudice
 Voluntary dismissal
o dismissals without prejudice-41(a)
 P decides to quit, files with stipulation without prejudice (no res judicata bar), or files without
stipulation
 Problem: D often opposes (unless w/prejudice), want fee-shifting, etc
o Dismissals with prejudice 41(a)
 primary ways federal actions settle
 Dismissal with prejudice or without prejudice filed w/court
o with side settlement agreement
 filed/not filed w/court
 jurisdiction issue for breach
o Entry of consent decree
 Good idea when anything besides money exchanging hands
 Entry of judgment under Rule 68-pursuant to offer of judgment
 one party transmits to other party which if not accepted, can have fee-shifting
consequences
 Involves entry of judgment on merits (so D’s don’t like)
Summary judgment Rule 56
Timing:
1. After 20 days of commencement of action
a. (if submitted as 12(b)(6) will treat as sum judg)
2. this is not judgment as matter of law, but has same standard
Techniques for sum. jud.
1. “Show me”
1. Moving party just files papers and says P can’t prove
2. P has to file opposition papers
a. Memo points and authorities in opposition
b. Proposed order
c. supporting evidentiary materials (given by Rule 56)
3. Moving party files reply
a. Memo of points and authorities-not supposed to put in any new evidence
i. this is risk of this approach, b/c if P does file info, D is stuck b/c can’t file any evidence
2. “Best This”
a. D files memo-and all evidence that disestablishes existence of element(s) targeted
b. ex. Adickes
3. “There’s No There There”/Getting the Ball rolling
a. (smarter “show me” strategy)
b. After take discovery and realize don’t have proof, send one last set of discovery requests with contention
interrogatories
i. ex. do you content meeting of minds?
ii. if answer other than no, state all facts supporting your contention, identify all persons,
documents
c. Follow with set of admissions
d. Then, when P unable to produce evidence, file motion include P’s answers establishing there isn’t proof
Analytical framework for summary judgment problem (trust your instruments)
1. Determine claim for relief/causes of action in P’s claim subject of sum judg. motion
a. may only have motion of summary adjudication for one of claims
2. Determine elements of claim that are attacked by action (can be aff. def)
a. P has to prove all elements (D only has to show no dispute in one)
i. harder for P to get summary judgment b/c have to prove no dispute in any fact for all of claims
1. ex. Lali-(no 12b6 b/c can’t enter evidence, but could assert affirmative defense and then file for
early summary judgment)
b. Burden Proof on Claim
c. Burden Proof on Motion-separate from burden of proof on elements (tension)
i. what does moving party have to establish 56c
1. no dispute on facts and entitled to judgment as matter of law
P’s Motion Sum Judg
P’s burden of
persuasion
D’s burden of
persuasion
D’s Motion Sum. Judg
*common (tricky)
*tricky too, but less
common
For each element for every claim for relief: Specify evidence placed in court record supporting the P’s case (but if
affirmative defense, D’s case) on the disputed elements
a. verified pleading facts, affidavits, interrogatory answers, materials and documents requests for admissions=all
goes into record
b. Remember: evidence must be admissible
4. Specify D’s evidence
5. Drawing all reasonable inferences in favor of non-moving party and making all credibility inferences against
moving party determine if reasonable jury could decide against mover
How to draw inferences:
6. Evidence of Elements
a. Anderson-material fact=might affect the outcome of the suit under governing law; (an essential element)
b. Celotex-complete failure of proof of one essential element renders all other facts immaterial
7. Standard:
a. Adickes 1970
i. “the party opposing the motion for summary judgment bears the burden of responding only after the
moving party has met its burden of coming forward w/proof of the absence of any genuine issues of
material fact"
ii. where evidentiary matter in support of motion doesn’t establish absence of genuine issue, sum. jud. must
be denied even if no opposing evidentiary matter is presented”
iii. 2 interpretations:
1. 1-requiring D to disprove element P has proof on
2. 2-getting ball rolling OK=if was this, SCOTUS ignored P’s evidence was inadmissible, so
denied b/c P adequately disproved D’s assertions
iv. Result:
1. lower courts confused over burden at trial/burden at sum judge
2. rarely granted sum jud
b. Celotex-1986- Burden
i. “party seeking sum. jud always bears the initial responsibility of informing the district court of the basis
for its motion”
1. but “no express or implied requirement in Rule 56 that the moving party support its motion with
affidavits or other similar materials negating the opponent’s claims”
a. 56(c) “if any”
ii. “burden on the moving party may be discharged by “showing”—that is, pointing to the district court—
that there is an absence of evidence to support the non-moving party’s case”
iii. “rule 56(c) mandates the entry of sum. jud. after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial)
iv. Remember: evidence must be admissible (but don’t have to depose own witnesses)
c. Anderson v. Liberty Lobby 1986 Reasonable
3.
d.
e.
f.
g.
i. sum judg. standard same as directed verdict 50(a) which is that a “trial judge must direct a verdict if,
under governing law, there can be but one reasonable conclusion as to the verdict”
1. takes burden of proof at trial into account (ex. heightened)
ii. if evidence presents sufficient disagreement that can be presented to jury or so one sided that judgment as
matter of law
iii. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge”
iv. “Reasonable” effect
1. Reasonable inferences is semantic shift (b/c no one would argue would allow unreasonable
inferences) but it does add something
a. note-ADA “reasonable modification”
v. idea: use expert to say reasonable to infer to avert sum. jud.
Matsushita v. Zenith-1986--Record on whole
i. “where record on whole couldn’t lead rational trier of fact to find for non-moving party there is no
genuine issue for trial”
ii. said expert testimony didn’t make economic sense=granted sum. jud.
Reeves v. Sanderson 2000
i. in order to decide a motion for judgment as a matter of law-directed verdict-, while reviewing the record
as a whole (which the court had required in Matsushita) the Supreme Court added that the ruling court
should give credence to evidence favoring nonmovant and must disregard all evidence favorable to
moving party that jury not required to believe (i.e. all evidence except that “evidence supporting the
moving party that is uncontradicted and unimpeached, at least to the extend that evidence comes from
disinterested witnesses”)
1. does Reeves indicate a shift?
Reasons for standards
i. Since liberal pleading standards, high standard for 12b6, and sum has to be mechanism to dispose of
meritless cases
Problem: what is a reasonable inference?
i. depends on how much latitude you give other views
ii. Part of what you see going on, (Celotex and Adickes) is change in what is viewed as reasonable inference
8. JUDGEMENT AS A MATTER OF LAW
Chance to end it
Other ways judge controls jury functions
1. Bifurcation of Proceedings-jury can’t hear about D’s wealth, etc.
2. Motions in Limine-rule on evidence b4 jury sees
3. Summary judgment
4. Jury instructions
5. Special Verdicts
a. can make judgments nov more likely to succeed
6. New trial Rule 59 and Rule 50 (see below)
1. Directed Verdict Rule 50
1.
2.
Timing
a. At close of P’s case (“after party has been heard) until submitted to jury
b. Can’t appeal until final judgment entered
Standard-same as sum judg: Rule 50 “where party has been fully heard and no legally sufficient evidentiary basis
for a reasonable jury to find for the party on that issue”
a. Reeves-see above (credibility=jury; how to draw inferences)
1. Prima facie case enough for discrimination (don’t have to directly prove discrimination-message to
courts)
2. Judgment N.O.V Rule 50
1.
2.
3.
Timing
a. Must have submitted motion for Directed Verdict
b. File within 10 days of jury returning verdict
Standard-same as directed verdict
Saves judicial time (b/c can wait for directed verdict); better decisions
9. Motion for New Trial
Motion for New Trial Rule 59& Rule 50
1.
2.
3.
4.
5.
Standard: much lower than judgment as matter of law
7th amendment
a. not a violation b/c new trials allowed in 1791
Instances allowed
a. Process Grounds
b. Evaluative Grounds
i. Aetna v. Yates- it is the duty of the judge to set aside the verdict and grant a new trial, if he is of
opinion that the verdict is against the clear weight of the evidence, or is based upon evidence
which is false, or will result in a miscarriage of justice, even though there may be substantial
evidence which would prevent the direction of a verdict”
ii. “The judge must be left with a definite and firm conviction that a mistake has been committed.”
Often used with altering damages
a. Additur=Unconstitutional v. Remittitur=Constitutional Dimick v. Schiedt
Decision much harder to overturn on appeal
Step 4: After Trial
10. Appeal
1.
2.
Has there been Final judgment? Rule 58
a. Final orders
i. judgment on the pleadings 12(c)
ii. judgment following 12(b)(6) if granted w/o leave to amend
iii. judgment after successful motion for summary judgment
iv. judgment as a matter of law
v. successful motion to dismiss for failure to prosecute
vi. dismissal with prejudice
vii. 54(b) Judgment on multiple claims-is partial judgment
1. what is a claim?=res judicata transaction test
b. Non-final orders
i. order denying motion to dismiss for failure to state a claim
1. b/c doesn’t end case
ii. motions compelling or denying discovery
1. may affect case a lot
iii. protective orders
iv. orders ruling evidence inadmissible/admissible
v. orders granting or denying class certification
c. EXCEPTION: Death Knell Doctrine: “an interlocutory order may be subject to immediate appeal if, as a
practical matter, it has such tactical or economic significance that it is tantamount to a “death knell” for the
case
i. Coopers & Lysand v. Livesay-death knell doctrine rejected by SCOTUS
ii. Still used in some states
d. EXCEPTION interlocutory appeals
i. injunctions-per statute
ii. property-per statute
iii. collateral order controlling question of law that is substantial grounds for difference of opinion that
would materially advance termination of litigation
1. trial and court of appeals must both agree to
2. Coopers & Lybrand v. Livesay
e. EXCEPTION extraordinary review
i. ex. writs of mandamus and prohibition
ii. rare in federal (ex. heard case and not rendered judgm. for 5 years)
iii. discretionary
f. EXCEPTION various judge made
i. criminal contempt; non-party civil contempt; hardship test
To what court can an appeal be taken
a. Appeal of right-first level
3.
4.
b. discretionary review-second level
What issues can be reviewed/how to set issues up for appeal
a. was there prejudicial effect
b. was the right preserved?
i. EXCEPTION: plain error
c. timely filing?
i. usually 30 days
d. procedural requirements
i. define issue
ii. other rules
What is the scope or standard of review
Standards of Review
de novo
clearly erroneous
substantial evidence
arbitrary & capricious
abuse of discretion
I---------------------------I----------------------------------------I------------------------------------I
discretionary orders
Q’s of law,
judicial findings
jury findings
findings some agencis
mixed Qs
or agency
of fact and
judge made findings of fact
findings of fact
law
Appeals court expertise<-------------------------------------------------------------------------------->trial court (agency) expertise
1.
2.
3.
4.
5.
-----------------------------------------
De Novo-decides whether decision of question of law was right or wrong, freely substituting its judgment for that
of lower court
a. statutory intent, sufficiency of defense, adequacy of jury instructions, admission of evidence, choice of
law,
b. motions: summary judgment, directed verdict, judgment M.of L, 12(b)(6),
c. Mixed: punitive damages
Clearly Erroneous-“when although there is evidence to support it, the reviewing court on the entire evidence is
left with a definite and firm conviction that a mistake has been committed”
a. Anderson v. City of Bessemer-clearly erroneous standard applies to all judge-made findings
b. trial judge stronger for oral and complex evidence/trials
abuse of discretion (varies with discretion used)
a. ex. scheduling, amendment by permission, complex joinder, discovery, Rule 11 & 37 sanctions
Substantial Evidence-reasonableness
a. juries and administrative agencies
b. compensatory damages-questions of fact
Arbitrary and Capricious-No Review-some agencies
11. Res Judicata (Claim Preclusion)
1.
2.
3.
4.
5.
Restatement 2nd: valid and final personal judgment conclusive, except on appeal or other direct review..:if
judgment in favor of P, claim extinguished and merged into judgment and new claim may arise on judgment, if
judgment in favor of D, the claim is extinguished and judgment bars a subsequent action
a. affirmative defense
Is there final valid j. on merits?
a. Rule 58
i. ex. dismissal with prejudice
ii. appeal: federal system judgment is final even if on appeal
1. states vary
iii. option: try to get judgment dismissed as erroneous Rule 60
1. fraud one of ways
Is this the same claim
a. Same transaction? Alexander (mere change in legal theory does not creat a new cause of action)
i. Do the claims arise out of a common nucleus of fact? Car carriers
1. facts related in time, space, origin, or motivation
2. taken together, form a convenient unit for trial?
3. does tx as unit conform to party expectations?
4. Gonzalez v. Banco Central
a. P’s unawareness of additional facts due to inadequate discovery not enough to
prevent res judicata Gonzalez
b. BUT ESTOPPEL: no res judicata when other parties wilfull misconduct
prevented P from knowing action available
ii. ex. different burdens of proof Simpson
b. EXCEPTION: CA test: primary rights
i. significant factor is “harm suffered” Agarwal v. Johnson (had filed Title IV action)
1. similar facts not determinative
2. harm from employment discrim. different than IIED and defamation
Are there same parties or parties in privity
a. Privity-control for purposes of preclusion
i. no bright line test-Gonzalez
b. Identity of Interest and Adequacy of Representation
i. effective choice as to legal theories and proofs to be advanced as well as control over the
opportunity to obtain review Gonzalez
ii. Virtual representation theory-need actual or constructive notice Gonzalez
iii. Purpose: Due Process
iv. In re Air Crash at Dallas/Fort Worth Airport-barring decedent’s daughter from relitigating
1. depends on state law (b/c affirmative def)
v. Decedent’s family NOT privity with state in criminal action Simpson
Purpose:
a. liberal claim adding (FRCP 15, 18) makes necessary for finality and fairness to D Car Carriers
12. Collateral Estoppel (Issue Preclusion)
Restatement 2nd: When an issue of fact or law is actually litigated and determined by a valid and final judgment,
and the determination is essential to the judgment, the determination is conclusive in a subsequent action between
the parties, whether on the same or a different claim
2. Steps:
a. Was there Final judgment (see above)
b. Party against whom estoppel will apply must be party or privy in first action
i. they had an opportunity to be heard (due process)
ii. Mutuality jurisdictions-both must be present
1. CA first state to abolish
2. SCOTUS abolished in Blonder Tongue Labs
c. Common issue of fact or law-that reappears in second case
i. Offensive use (sword)
1. use to assert claim or defense
ii. Defensive use (shield)
1. use to defeat claim or defense
2. ex. Salco use finding of no punitive damages
d. Actually litigated
e. determined
i. look at record as a whole Hoult v. Hoult (de novo)
1. ex.: closing arguments, evidence, special verdict
f. Necessary/Essential to judgment
i. “whether a rational jury could have grounded its verdict upon an issue other than that which the
moving party seeks to foreclose from consideration” Ashe v. Swenson
ii. finding is “necessary” if it was central to the route that led the factfinder to the judgment
reached, even if the result “could have been achieved by a different, shorter and more efficient
route” Hoult v. Hoult
iii. issue may be “actually decided” even if it is not expressly decided for it may have constituted
logically or practically a necessary component of the decision reached Dennis v. Rhode Island
iv. Lord Coke: estoppel must be “certain to every intent”
g. Not unfair If D didn’t have full and fair opportunity to litigate in former case Allen v. McCurry
i. Examples Parklane Hosiery Co. v. Shore: (gov’t had declaratory relief)
ii. Inconsistent verdicts-if won 25 of 26, wouldn’t be fair to use
iii. D has little incentive to defend vigorously
iv. P has incentive to delay suit
v. 2nd action affords D procedural opportunities unavailable in first action
1. procedural rules
2. evidentiary rules
3. standards of proof
4. right of appeal
5. NOT right to jury trial
a. even though col. estop. not allowed in 1791, many procedural devices
developed since then not inconsistent w/7th Am
6. NOT § 1983 claim in state court Allen v. McCurry
3. Analysis Grid:
a. suits #
b. Parties:
c. claims:
d. Factual theory:
e. evidence used:
f. findings/judgment:
Test pointers:
 THINK BACKWARDS
 Mock Exam-frame issue as procedural issue Issue: legal sufficiency of complaint stating claim
 Rule: Has to be procedural rule (not elements of claim) 8c-12b6 Conley v. Gibson
1.